Same Sex and De Facto Relationships

Same Sex and De Facto Relationships

De facto is of Latin origin and means of fact or if you prefer if it “walks like a duck, quacks like a duck, it is in fact, a duck!

Considerations that determine whether or not a de-facto relationship exists include, for example

  • Did or do you live together, were committed to each other to live a shared life and was there is a sexual relationship?
  • Do or did friends family, work colleagues and acquaintances see you both as an “item”?
  • Are their children of the relationship and their care and support?
  • Have you bought property together and do own the property together?
  • Did each of keep your finances separate from one another or were you financially dependent on each other?

Generally speaking, a relationship of two years duration where any or all of the above considerations exist, then the relationship will be seen as de facto.

The existence of a de facto relationship has implications for superannuation and insurance pay-outs and even in inheritance matters.

If you are recognised as being in a de-facto relationship and if your relationship breaks down, then you have certain legal protections and obligations under the Family Law Act.

Both same-sex and heterosexual couples in a de facto relationship can and do qualify for these protections.

The defining of the relationship as de facto can be the starting point for working out whether there is a financial claim against the other person in the relationship.

The protections relate to you and the division of yours and your partners property – that is a property settlement.

If there are children, they too are provided specific protections in the event of a breakdown of the relationship. This does not mean that children are seen as property or are to be owned by one parent or the other.

The fair and reasonable division of assets when the relationship breakdown can be the source of a conflict between you.

The reality is that one in five relationships – both de-facto and married, end due to money issues.

De-facto relationships evolve or perhaps and more often than not become a reality under an aura of romance.

For this reason, it is encouraged that both parties know where they stand financially in the relationship.

As uncomfortable as they are, it is best not to ignore conversations about money and assets each party has at the commencement of the relationship. Open and honest conversations about such things with your partner will provide both of you with a sense of security as the relationship grows and blossoms.

It is a myth, a misconception that all assets are owned equally and therefore to be divided on a 50/50 basis if the relationship should collapse.

At the commencement of a de facto relationship and especially when you commence living together under the same roof, each of you should know and document your assets and your debts i.e. formulate a list of what is “mine”, including the value of your superannuation at the time you commence cohabitating.

The distribution of matrimonial or shared property can be complex. For example, the initial contribution, i.e. what each of you bring into the relationship at its commencement is taken into account with a sharing of assets is necessary but the value of that initial contribution can reduce over time especially if the relationship is a lengthy one, say more than 10 years.

In property settlements, issues such as either you or your partners ability to earn an income is taken into account. If there are children of the relationship then the partner with whom the children spend more time may be entitled to a greater share in the distribution of property and assets.

These sorts of issues can raise concerns that can be a source of stress on both parties and indeed the wisdom of continuing in a de facto relationship may become a serious consideration, however it is not necessary to “pull the plug”, so to speak, on the relationship.

The team at ORB Lawyers is well placed to explain, in easily accessible language your rights, liabilities and obligations should a de facto relationship end. Our solicitors at ORB Lawyers are trained and experienced listeners with the expertise and knowledge to answer your questions.

Our solicitors will endeavour to assist you to feel confident in your financial position both as an individual and as a partner in a de facto relationship.

If you and your partner are at a point in your relationship where you both agree that a financial agreement will work well for you both then please get in touch with ORB Lawyers.

ORB Lawyers can, if necessary, assist you with financial agreements such as Binding Financial Agreements or Consent Orders to provide both partners with certainty, peace of mind and reassurance.

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